Penal Code §9.41 and §9.42: Protection of Your Property

Various sections in Chapter 9 of the Texas Penal Code (PC) address the protection of property.

Use of Force to Protect Your Property: According to PC §9.41, if you are in lawful possession of land or tangible, movable property, you may use force against another person if you reasonably believe the force is immediately necessary to:

Prevent or stop the other person from trespassing on your land or interfering with your property or…

Reenter the land or recover the property if you are in fresh pursuit of the other person and the other person has no claim to the land or property.

Use of Deadly Force to Protect Your Property: According to PC §9.42, you are justified in using deadly force against another person to protect your land or tangible, movable property if ALL three of the following are true.

You would be justified in using force under §9.41.

You reasonably believe that deadly force is immediately necessary to prevent:

The commission of arson, burglary, robbery, aggravated robbery, theft during the nighttime, or criminal mischief during the nighttime or…

The other person from escaping with your property after committing burglary, robbery, aggravated robbery, or theft during the nighttime.

You reasonably believe that:

Deadly force is the only way to protect or recover your land or property or…

Using force other than deadly force to protect your land or property would put you at substantial risk for death or serious bodily injury.

Example Situation

After a long day at work, Gary finally pulls into his driveway just in time to see two masked men running out of his front door with his favorite television and his grandfather’s expensive watch on one of the men’s wrists. Gary gets out of his car and demands that the men stop where they are, but they ignore him and run away. Gary pulls his Glock 17 and fires at the fleeing men, killing one and injuring the other.

Was Gary justified under section 9.42 to use deadly force? To answer this question, start the three-step analysis under section 9.42. First, is Gary justified under section 9.41 to use force? Gary has to show a jury that he had a reasonable belief that it was immediately necessary to use force to stop the interference with his property or a trespass. It seems pretty clear that with his TV and watch being stolen, there is both interference with property and a trespass. So if Gary reasonably believes (as decided by a jury) that force is necessary to stop the threat, he may use force under section 9.41. Gary likely passes step one.

Next, under section 9.42, the jury will decide if Gary had a reasonable belief that his use of deadly force was immediately necessary to prevent “burglary,” “theft during nighttime,” or to prevent the person he shot from fleeing immediately after the person committed a burglary or theft during the nighttime from escaping with his TV and watch. This second requirement seems fairly straight-forward, and Gary likely passes step two as well.

Finally, a jury must find Gary’s belief reasonable that his TV and watch could not have been protected or recovered by other means, or that using less than deadly force would have endangered him under the language of section 9.42. In this case, the jury is again the ultimate arbiter and persons may reasonably disagree. Because there are no legal presumptions of reasonableness available to Gary in protecting property, we do not know how the jury will decide this case, but the facts definitely seem to be in Gary’s favor.

Source: Texas Gun Law: Armed and Educated published by Texas Law Shield, LLP

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